ABA Formal Opinion 497 provides guidance on how lawyers should address materially adverse interests

Hello everyone and welcome to this Ethics Alert, which will discuss recent American Bar Association (ABA) Formal Opinion 497, which addresses how lawyers should address materially adverse interests and provides guidance.  ABA Formal Opinion 497 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-497.pdf   The ABA press release on Formal Opinion 497 is here.

ABA Model Rule 1.9(a) (which is substantially similar to most state disciplinary rules, including Florida) prohibits lawyers from representing current and former clients when the interests of the current clients are “materially adverse to the interests of the former client” unless the former client gives informed consent.

ABA Model Rule 1.18(c) (substantially similar to most state disciplinary rules, including Florida) prohibits a lawyer from undertaking the representation of a client “with interests materially adverse to those of a prospective client in the same or substantially related matter” if such information would be significantly harmful to the prospective client.

ABA Formal Opinion 497 explains the concept of “material adverse” in this context and discusses three types of situations where that conflict may occur, including: (1) suing or negotiating against a former client; (2) a lawyer attacking or undermining their own prior work on behalf of a former client; and (3) examining a former client.

1. Suing or negotiating against a former client

A lawyer suing a former client or defending a new client against a claim by a former client on the same or substantially related matter is a classic example of creating an impermissible conflict with “materially adverse” interests. The opinion quotes a federal district court decision for the principle that “there is no situation more ‘materially adverse’ than where a lawyer’s former client is in a suit against lawyer’s current client.”  This principle applies lawsuits as well as negotiations, and the opinion states that “being across the table, so to speak, from a former client and negotiating against that former client in transactional matters typically constitutes ‘material adverseness.’”

2. Lawyer attacking his or her own work

A lawyer attacking their own prior work also constitutes material adverseness. The opinion cited as an example a federal circuit opinion in which a lawyer attempted to challenge a patent that the lawyer had previously obtained for a former client.  According to the opinion, “(w)hen a lawyer represents a current client challenging the lawyer’s own prior work done for a former client on the same or a substantially related matter, the situation creates a materially adverse conflict.”  The opinion notes that material adverseness may exist when a lawyer seeks to undermine work or a result achieved for a former client.

3. Examining a former client

A lawyer cannot use information from a former client to the disadvantage of the former client under Rule 1.9(c)(1). Thus, if a lawyer has to use such information in examining a former client, the lawyer has a conflict of interest unless the negative information is “generally known.”  The opinion refers to an ethics opinion from Ohio holding that a lawyer can only impeach a former client with a criminal conviction if that conviction is “generally known” under Rule 1.9(c).  The opinion further states that a lawyer could avoid this conflict by having the current client retain another attorney to examine the former client and screen the lawyer with the conflict from participating in such an examination of the former client.

4. Waiver and informed consent

The opinion explains that lawyers can still represent current clients even when the representation is materially adverse to former or prospective clients, as long as certain conditions are met. In the case of a conflict between a current and former client, the lawyer must obtain the informed consent of the former client to waive the conflict, which must be confirmed in writing.  The lawyer can represent a current client in a matter materially adverse to a prior prospective client if the current and prospective client give informed consent confirmed in writing.

Bottom line:  ABA Formal Opinion 497 provides guidance to lawyers on how to avoid conflicts of interest related to suing or negotiating against a former client, attacking his or her own legal work, examining a former client, and obtaining a waiver of conflict and informed consent 

            Stay safe and healthy and be careful out there.

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding ethics, risk management, or other issues, please do not hesitate to contact me.             

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, advice and representation of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

ABA Formal Opinion 494 addresses conflicts arising from a lawyer’s personal relationship with opposing counsel

Hello everyone and welcome to this Ethics Alert, which will discuss American Bar Association Formal Opinion 494 addresses conflicts arising out of a lawyer’s personal relationship with opposing counsel under ABA Rule 1.7(a)(2).  The opinion identifies three categories of personal relationships that could affect a lawyer’s representation of a client: intimate relationships, friendships, and acquaintances. ABA Formal Ethics Opinion 494 is here:  https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-494.pdf    

The formal opinion states that Model Rule 1.7(a)(2) prohibits a lawyer from representing a client without informed consent if there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer.  A personal interest conflict may arise out of a lawyer’s relationship with opposing counsel.

According to the formal opinion, lawyers must examine the nature of the relationship to determine if it creates a conflict under the rule and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.

The formal opinion lists three categories of personal relationships that might affect a lawyer’s representation of a client: 1. intimate relationships (including cohabitation, engagement, or exclusive intimate relationship) 2. friendships, and 3. acquaintances.  

1. Intimate relationships

The opinion notes that “changing living patterns” indicate that more people are living in the same household with “arrangements that do not correspond to traditional categories.”

“Lawyers who cohabit in an intimate relationship should be treated similarly to married couples for conflicts purposes,” according to the opinion. This includes those who are married, engaged to be married, or in “exclusive intimate relationships.” In these instances, lawyers must disclose the relationship to their respective clients and may not represent the clients unless each has given informed consent confirmed in writing.

2. Friendships

The opinion states that friendships “may be the most difficult category to navigate.” Close friendships with opposing counsels should be disclosed to clients, according to the opinion. These include friendships in which the lawyers exchange gifts at holidays, spend time routinely at each other’s home, or vacation together with their families. 

According to the opinion, opposing counsel who were law school classmates or once practiced together and do not see each other regularly ordinarily do not have to obtain a client’s informed consent and may not have to even disclose the relationship to clients.  “In sum, opposing lawyers who are friends are not for that reason alone prohibited from representing adverse clients.”  “The analysis turns on the closeness of the friendship.”

3. Acquaintances

The opinion describes acquaintances as those individuals who the lawyer sees the other lawyer at social or professional gatherings, such as a professional organization or a church, but do not have “a close personal bond.”  “Lawyers who are acquaintances of opposing counsel need not disclose the relationship to clients, although the lawyer may choose to do so.”

The opinion concludes that lawyers should examine the nature of the relationship to see whether it is close enough to require disclosure and client informed consent.  Further, “(d)isclosure may even be advisable to maintain good client relations.”

Bottom line:  This ABA Formal Opinion was published to assist lawyers in evaluating personal relationships with opposing counsel and determining whether the relationship may or does result in a conflict of interest.  If it does, the lawyer is required to disclose the relationship to the client and obtain informed consent in writing. 

            Stay safe and be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2999 Alt. 19, Suite A

Palm Harbor, Florida

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Florida Supreme Court suspends two lawyers for conflict of interest Bar Rule violations under “hot potato doctrine”

Hello everyone and welcome to this Ethics Alert, which will discuss recent opinion of the Supreme Court of Florida suspending two Florida lawyers for 30 days for violating Bar Rules related to conflicts of interest under what is being called the “hot potato” doctrine. The cases are: The Florida Bar v. Steven Kent Hunter, Case No.: SC16-1006, TFB No. 2014-70,728(11C) and The Florida Bar v. Philip Maurice Gerson, Case No.: SC16-1009, TFB No. 2014-70,729(11C).  The April 11, 2018 Supreme Court opinion is here:  https://efactssc-public.flcourts.org/casedocuments/2016/1006/2016-1006_disposition_141625_d31a.pdf

The Florida Supreme Court opinion suspended the two lawyers for 30 days each for seeking payments for their clients from a scientific institute created in a class action tobacco settlement notwithstanding objections from their previous clients.  The opinion found that the lawyers violated Florida Bar Rules 4-1.7 (conflict of interest – current clients), and 4-1.9 (conflict of interest – former clients) by seeking relief adverse to the clients’ interests.  The case involved the so called “hot potato doctrine”, which was established in a March 27, 2014 Florida Supreme Court opinion involving the same lawyers.

The 2014 Supreme Court opinion quashed a Third District Court of Appeals opinion reversing a trial court order disqualifying the lawyers on the same underlying facts as the 2018 Bar case.  That opinion stated:  “Additionally, with this opinion, we ask The Florida Bar to investigate whether any Florida Rules of Professional Conduct were violated during the underlying proceedings or during the presentation of this case to this Court.  The case is Patricia Young et al. vs. Norva Achenbauch, et al., Case No. SC12-988, and the March 27, 2014 opinion is here:  http://www.floridasupremecourt.org/decisions/2014/sc12-988.pdf

In Young, the Court said that a lawyer who has a conflict of interest between two current clients cannot avoid the current-client conflict rule (4-1.7) by dropping one client “like a hot potato.”  Before that opinion, it was argued that a client who a lawyer dropped because of a conflict of interest became a former client under Bar Rule 4-1.9, which is potentially less restrictive.

The underlying litigation began with a putative class-action lawsuit filed by a different lawyer on behalf of a number of flight attendants alleging damages for second hand smoke inhalation. That case settled with no compensation to class members; however, the settlement provided that $300 million would be paid to create a foundation sponsoring scientific research on cigarette smoking.  The settlement also allowed individual suits for compensatory damages by class members, as long as those claims were not based on alleged fraud and misrepresentation.  The lawyers were among the lawyers who took on individual suits by flight attendants.

The referee found in his report that the lawyers (and the other lawyers) were “wholly unsuccessful” in the individual cases, partly because class members could not prove causation.  The referee also found that, after the unsuccessful lawsuit, the lawyers then turned to “Plan B”, which was to negotiate payments to class members from the foundation. Two of Gerson’s former clients sent letters to the foundation stating they objected to any plan to undercut the foundation’s activities and funding.  Hunter, the other lawyer, received an objection from a foundation board member who he had previously represented in one of individual lawsuits, and who was being paid $60,000 annually to serve on the foundation board.

According to the referee’s report, Gerson believed the letters were solicited to stop the petition to approve a distribution from the foundation. Gerson and Hunter then withdrew from representing anyone who had voiced an objection, and filed a petition alleging that the institute had substantially deviated from its approved purpose and had misused settlement funds.

The institute and the objectors then filed a petition to disqualify the lawyers because of a conflict of interest and the disqualification issue was addressed in the Florida Supreme Court’s 2014 opinion, which created the so called “hot potato” doctrine.  The referee found that the 2014 opinion was binding in the ethics case; however, the referee recommended only an admonishment, finding that neither lawyer had any prior disciplinary record, the case involved legal issues that were unsettled before the 2014 Supreme Court decision, and the issue of whether the petition sought relief adverse to class members was “fairly debatable.”

The Florida Supreme Court opinion approved the referee’s findings of fact and the recommendation that the lawyers be found guilty of violating Florida Bar Rule 4-1.7; however, the opinion rejected the recommendation that the lawyers be found not guilty of violating Bar Rule 4-1.9, and found both lawyers guilty of violating that rule. The opinion also disapproved the referee’s recommendation of an admonishment and suspended both lawyers for 30 days.

Bottom line:  This is an unusual case where the Florida Supreme Court issued an opinion in an underlying case and sent the case to The Florida Bar for investigation.  The opinion relied on the court’s previous finding in the civil case and suspended the lawyers, even though the referee found the conflict to be “fairly debatable”.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier about.me/corsmeierethicsblogs

Federal prosecutor suspended after lying about intimate relationship with FBI agent who testified in her cases

Hello everyone and welcome to this Ethics Alert which will discuss the recent Louisiana Supreme Court disciplinary opinion which imposed a one year and one day suspension with 6 months deferred on a federal prosecutor for having an intimate relationship with an FBI agent who was an investigator and witness in her cases and lying about it.  The disciplinary case is In Re: C. Mignonne Griffing, Case No. 2017-B-0874 and the October 18, 2017 disciplinary opinion is here: file:///C:/Users/jcorsmeier/Downloads/17B0874.OPN.pdf

The relationship was revealed during the trial of two Monroe, Louisiana city councilmen and the Ouachita Parish sheriff. “After the sheriff’s counsel raised the possibility of the relationship, (the lawyer) was questioned by the United States Attorney and was not immediately and fully forthcoming.”

The lawyer initially denied the relationship with the (married) FBI agent at that time but it was later confirmed.  The disciplinary opinion adopted the findings of the disciplinary board that the misconduct “led to the government’s decision to relitigate the case against Councilmen Stevens and Gilmore, caused harm in the form of the additional expenditure of resources to retry the case, and adversely impacted the government’s tendered plea bargain offered to Sheriff Toney. The potential for harm also exists, as it is possible that the issue of the relationship may be raised in other cases prosecuted by respondent in which the FBI agent testified. Furthermore, her actions are the type that cause unfavorable opinion by the public towards the legal system and especially, the United States Attorney’s Office in the Western District of Louisiana.”

The lawyer denied that the relationship created a conflict of interest and defended the formal.  She was ultimately found guilty of multiple violations of the Louisiana Bar Rules, including conflict of interest and making false statements in denying the conduct.

According to the opinion, “(b)ecause the relationship with the FBI agent could reasonably give rise to a basis for questioning the interest and/or credibility of the witness by the defense, the existence of the relationship should have been disclosed to the defendants, but (the lawyer) failed to do so.”  “In addition, the disciplinary board found (the lawyer) made assurances to the sheriff’s counsel relative to his client’s indictment and arrest. This conduct, and her phone call threatening the sheriff’s public arrest, were clearly improper.” “(The lawyer’s) actions are the type that cause unfavorable opinion by the public towards the legal system and especially, the United States Attorney’s Office in the Western District of Louisiana.”

The opinion increased the deferred six-month suspension recommended by the disciplinary board.  “When taken cumulatively, including the multiple violations of the Rules of Professional Conduct and specifically considering respondent’s dishonesty and misrepresentation to which she has stipulated, we find that the fully deferred suspension recommended by the board is not appropriate and that respondent must serve an actual period of suspension. We will impose a one year and one day suspension, deferring all but six months of the suspension in light of the substantial mitigating circumstances present.”  The lawyer also served a 19 day suspension from her job as a prosecutor without pay for the misconduct.

Bottom line:  This lawyer was found to have engaged in a relationship with a law enforcement agent who was an investigator and witness in many of the cases that she was prosecuting for the U.S. Attorney’s Office and failed to disclose it (for obvious reasons).  The lawyer paid the price for this misconduct with a suspension of her license and a serious hit to her reputation.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Louisiana Supreme Court concludes that “of counsel” lawyers are associated with that law firm for conflicts of interest analysis

Hello everyone and happy 2015 to you and yours! This first Ethics Alert of the new year will discuss the recent Louisiana Supreme Court which concluded that “of counsel” lawyers are associated with that law firm for purposes of potential conflicts of interest analysis. The case is In re Randy J. Fuerst, No. 2014-B-0647 (La. SC 12/9/14). The Court’s opinion is here: https://www.ladb.org/DR/?

According to general practice in the United States, a law firm can identify one or more lawyers as having an “of counsel” relationship with the firm. ABA Formal Op. 90-357 (May 10, 1990) states that, although the application of the term is varied, the “core characteristic (of the) title ‘counsel’ is, as stated in Formal Opinion 330, a ‘close, regular, personal relationship’; but a relationship which is neither that of a partner (or its equivalent, a principal of a professional corporation), with the shared liability and/or managerial responsibility implied by that term; nor, on the other hand, the status ordinarily conveyed by the term “associate,” which is to say a junior non- partner lawyer, regularly employed by the firm.

The ABA opinion notes that there is no prohibition against a law firm being “of counsel” to another law firm; however, “of counsel” relationships do not include the following: 1) “a relationship involving only an individual case,” 2) a relationship of “forwarder or receiver of legal business,” 3) a relationship “involving only occasional collaborative efforts among otherwise unrelated lawyers or firms,” or 4) a relationship as “an outside consultant.” ABA Formal Opinion 90-357 is here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_90_357.authcheckdam.pdf

In the recent Louisiana Supreme Court opinion, the lawyer was found guilty of violating the Louisiana Bar Rules by engaging in a sexual relationship with a current client and he was also found to have engaged in a conflict of interest in violation of Louisiana Bar Rule 1.10 “by referring a (current divorce) client to another lawyer in the law firm with which he was associated as ‘Of Counsel.’” The opinion found that “(a) lawyer who is ‘Of Counsel’ to a law firm is considered to be a member of the firm for purposes of analyzing imputed disqualification questions”; therefore, the lawyer “was required to refer the divorce case to a lawyer outside his law firm prior to the time that he became involved in a personal relationship with her.”

Bottom line: According to this Louisiana disciplinary opinion, a lawyer who is “of counsel” to a law firm is considered to be a member of that law firm for purposes of conflict of interest analysis; therefore, a lawyer who has a conflict of interest and must withdraw from representing a client cannot refer that client to a law firm in which he has an “of counsel” relationship since this conflict is imputed to the law firm and all of its lawyers. In addition, in this case, the lawyer “was required to refer the divorce case to a lawyer outside his law firm prior to the time that he became involved in a personal relationship with her.”

Be careful out there.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

New York lawyer suspended for, inter alia, agreeing to assist a client in a malpractice claim against his own law firm

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent New York disciplinary opinion which imposed a one (1) year suspension on a lawyer who, along with other misconduct, entered into an agreement with a client to assist in a malpractice action against his own law firm. The opinion is Matter of Novins, 2014 NY Slip Op 03465 (NY Appellate First Division 5/13/14) and the disciplinary opinion is here: http://www.nycourts.gov/reporter/3dseries/2014/2014_03465.htm

According to the opinion, the lawyer was hired by a New York law firm in 2006 and was assigned to work on a personal injury action filed in 1994 against the City of New York and an off duty New York City police officer on behalf of another off duty New York City police officer (the client), who had been shot and wounded in a bar by that off-duty police officer. Although the lawyer’s firm served the City with a summons and complaint, it never served the defendant police officer. In 2007, the City was granted summary judgment in the personal injury action on the ground that it had not negligently supervised the shooting police officer because it did not have notice of his dangerous propensities. The summary judgment was affirmed in 2008.

In January 2008, while the motion for leave to appeal was pending, the lawyer and the client met in a restaurant and signed a “Personal Services Agreement” under which the client agreed to “give” the lawyer 45% of any net recovery he received related to the shooting incident. This agreement included the personal injury action and a legal malpractice claim against the lawyer’s firm for “negligently failing to timely serve the defendant police officer, for neglecting to work on (the) case over the many years, for failing to take the deposition of the defendant police officer, for having failed to obtain a copy of the defendant police officer’s Personnel File in a timely manner and for failing to bring a Motion … for spoliation of this key evidence.” The agreement was drafted by the lawyer; however, it did not specifically state what services that the lawyer would provide. The lawyer acknowledged during the disciplinary proceedings that he agreed to serve as a witness for the client in the malpractice action against his employer.

During the disciplinary proceedings, the lawyer stated that the client brought up the subject of additional compensation and that the 45% fee was to compensate him for his extraordinary efforts in the personal injury action and for his willingness to assist the client in pursuing the malpractice claim, which would require him to leave his law firm (the putative legal malpractice defendant). The client denied this and stated that the lawyer produced the agreement at the meeting and asked him to sign it, telling him that he had notes and documents that would prove the legal malpractice claim. The lawyer provided the client with a list of legal malpractice attorneys and concealed the agreement from his law firm.

In May 2008 (while the lawyer was still employed with the law firm), a malpractice action was filed against the lawyer’s firm and principals and “(b)etween February and March 2009, (the lawyer) left a series of voice-mail messages for (the client) asking him to call him back. On April 28, 2009, (the lawyer) left (the client) a message in which he referred to risking his neck by putting certain notes back into the personal injury action file which (the client) would need for the malpractice action. In May 2009, respondent left a message stating that he would be leaving the (law) firm in 30 days and would be able to prove the malpractice and coverup.”

On May 28, 2009, the lawyer left a message with the client complaining that he had called him about 30 times but received only one call back. The lawyer falsely stated that he had left his law firm and said that he considered the agreement to be in full force and effect. He also threatened to throw away all the evidence in his possession unless the client called him back. Ten minutes later, the lawyer left another message stating he would take appropriate action to enforce the agreement as soon as he left his firm. The lawyer admitted during the disciplinary proceedings that the purpose of the calls was to compel the client to honor the agreement or at least renegotiate its terms so that he could have a financial recovery for the malpractice claim.

In April or May 2010, during the course of discovery, the lawyer’s law firm learned of the secret agreement with the client, but did not fire the lawyer. On or about August 17, 2010, the law firm learned of the messages that the lawyer left on the client’s voice mail and the lawyer was deposed in the malpractice action on August 20, 2010 and retracted his allegations of malpractice against the law firm.
The client filed a disciplinary complaint against the lawyer on August 26, 2010. The law firm fired the lawyer on August 31, 2010 and filed a disciplinary complaint against him on September 7, 2010. In 2012, the New York Disciplinary Committee brought six charges against the lawyer and a disciplinary panel conducted evidentiary proceedings.

The disciplinary panel found that the lawyer charged an excessive and unreasonable fee, engaged in conduct which reflected adversely on his fitness as a lawyer, acquiesced to the payment of compensation to himself as a witness which testimony was contingent on the outcome of a case, violated his duty of loyalty to both the client and his law firm by attempting to charge a client for information that both he and the firm were ethically obligated to provide and by concealing the agreement from his employer, and threatening to destroy evidence that was apparently essential to the client’s malpractice claim. The panel recommend that the lawyer be suspended from practice for one (1) year.

After considering mitigating and aggravating factors and relevant case law, the opinion granted the Disciplinary Committee’s Motion to approve the hearing panel’s recommendation that the lawyer be found guilty of all counts and suspended him from the practice of law for one (1) year.
Bottom line: This opinion tells a quite sordid tale of duplicity, false statements, disloyalty, attempted coercion, and greed as well as just plain dumb actions by a lawyer who was unbelievably disloyal to both his law firm and to a client. Sometimes you think you have seen it all…

Let’s be careful out there.

Disclaimer: this Ethics Alert blog is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670
jcorsmeier@jac-law.com
http://www.jac-law.com

Florida Bar’s Board of Governors approves Advisory Opinions related to waivers of ineffective assistance and prosecutorial misconduct and permitting lawyers to authorize non-lawyers to use E-Portal credentials

Hello everyone and welcome to this Ethics Alert blog Update which will discuss the approval of Ethics Opinions 12-1 and 12-2 by the Florida Bar Board of Governors of The Florida Bar at its meeting on December 7, 2012.  Advisory Opinion 12-1 can also be viewed online at http://www.floridabar.org/tfb/TFBETOpin.nsf/b2b76d49e9fd64a5852570050067a7af/6a2611d9cdcc8db485257ad00070e3fb!OpenDocument and Advisory Opinion 12-2 can be viewed at http://www.floridabar.org/tfb/TFBETOpin.nsf/b2b76d49e9fd64a5852570050067a7af/4e9e9f5062025c5a85257ad00071b560!OpenDocument.

As I have stated in my previous Ethics Alerts, the Professional Ethics Committee of The Florida Bar, after extensive debate and review, issued proposed Advisory Opinion 12-1, which determined that it is unethical for a criminal defense lawyer to advise a client to accept a plea bargain that prevents the client from raising future claims of ineffective assistance of counsel or prosecutorial misconduct.  The opinion also states that it is unethical for prosecutors to offer such a plea condition because it could induce defense attorneys to act unethically and is prejudicial to the administration of justice.  The Florida Bar’s Board of Governors reviewed and approved the opinion at its meeting on 12/7/12 and it is now final.

The Florida Bar’s Board of Governors also approved proposed Advisory Opinion 12-2 at its meeting on 12/7/12 which opines that lawyers may permit non-lawyers to use the lawyer’s access credentials for filing documents with a court using the E-Portal.  The executive summary states that “(t)he lawyer must properly supervise the nonlawyer, should monitor the nonlawyer’s use of the E-Portal, and should immediately change the lawyer’s password if the nonlawyer employee leaves the lawyer’s employ or shows untrustworthiness in use of the E-Portal.”

Bottom line:  The controversial Advisory Opinion 12-1 and the not so controversial Advisory Opinion 12-2 are now final. As I have said in the past, Ethics Advisory Opinions are not binding or precedential; however, they can be and are used for guidance by lawyers and the basis for prosecution by The Florida Bar if they are not followed.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

 Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

North Dakota lawyer receives reprimand for violating conflict of interest rules in representing both the defendant and victim in a single criminal case and making false statements to prosecutor

            Hello everyone and welcome to this Ethics Alert blog which will discuss the recent North Dakota Supreme Court disciplinary opinion reprimanding a lawyer for violating conflict of interest rules by representing both the defendant and victim in a single criminal case and making false statements to the prosecutor.  The case is Disciplinary Board of the Supreme Court of the State of North Dakota v. Blake D. Hankey, No. 20120304, 2012 ND 206 (October 15, 2012).  The opinion is here:  http://www.ndcourts.gov/court/opinions/20120304.htm

According to the opinion, the lawyer was admitted to practice in North Dakota on May 5, 2005 and he “undertook dual representation of an alleged perpetrator and alleged victim of the crimes of aggravated assault and terrorizing.”  The “alleged perpetrator” and alleged victim executed a single representation agreement; however, since there was a no-contact order between them, the alleged victim signed in the lawyer’s office and the “alleged perpetrator” signed at the correctional center where he was being held on the criminal charges. The lawyer had the clients execute a waiver of conflict of interest

When he spoke with the criminal prosecutor handling the case, the lawyer failed to advise her that he also represented the alleged victim.  When she learned of the dual representation, the prosecutor confronted the lawyer about the apparent conflict of interest and the lawyer falsely told her that he had cleared any conflict with his partners.

The lawyer was charged with violating the following North Dakota disciplinary rules: 1.7(a) a lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests; 1.2(A)(3), a lawyer may be disciplined for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and 8.4(c), a lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer.

After a hearing, a disciplinary panel found that the lawyer’s conduct violated Rule 1.7(a), by representing one client whose interests were “inescapably adverse” to another client because they were alleged perpetrator and alleged victim of crimes and because he took steps that were adverse to each of them but that he did not violate Rule 1.2(A)(3) and Rule 8.4(c) since the false statement that he had cleared the conflict of interest with his partners did not affect the analysis and did not help him in any way and should not have mattered to the prosecutor. The panel also found that the lawyer did not have an ethical duty to disclose the victim’s status as his client before he was asked about it by the prosecutor.  The panel recommended that the lawyer be reprimanded and pay the costs.

The opinion upheld the violation of Rule 4-1.7(a) but reversed the panel’s recommendation that the lawyer did not violate Rule 8.4(c) and found that there was clear and convincing evidence that the lawyer violated the rule since he admitted making the false statement that he had cleared the conflict of interest with his partners.  The opinion upheld the recommended sanction of a reprimand and payment of costs.

Bottom line:  the facts and result of this case are a bit crazy, to say the least.  Not only did the lawyer represent both the alleged “perpetrator” and alleged victim in a single criminal case, but he also falsely claimed to the prosecutor that he had disclosed the dual representation to his partners and that they had approved the representation (the lawyer apparently never thought that the conflict might not be waivable by the clients either).  Somewhat surprisingly, the lawyer received only a reprimand.

…be careful out there!

Joseph A. Corsmeier, Esquire Law Office of Joseph A. Corsmeier, P.A. 2454 McMullen Booth Road, Suite 431 Clearwater, Florida 33759 Office (727) 799-1688 Fax     (727) 799-1670 jcorsmeier@jac-law.com www.jac-law.com